| People ex rel. Cisson v Artus |
| 2010 NY Slip Op 08404 [78 AD3d 1392] |
| November 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Jerome T. Cisson,Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Muller, J.), entered December 14, 2009 in ClintonCounty, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant toCPLR article 70, without a hearing.
In 2008, petitioner was convicted of criminal possession of a controlled substance in the thirddegree and criminal possession of a controlled substance in the seventh degree. He was sentenced toan aggregate prison term of eight years, to be followed by three years of postrelease supervision.Petitioner subsequently made a number of motions to vacate the judgment of conviction and to set asidethe sentence, and also appealed the judgment of conviction. Thereafter, he commenced this proceedingpursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court denied the petition without ahearing and this appeal ensued.
We affirm. "It is well settled that habeas corpus relief is unavailable in cases where an issue couldhave been raised on direct appeal or in the context of a CPL article 440 motion" (People ex rel. Berry v LaClair, 65 AD3d1428, 1428 [2009] [citations omitted]; see People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010],lv denied 14 NY3d 707 [2010]; People ex rel. Jackson v Rock, 67 AD3d 1080 [2009], lvdenied 14 NY3d 704 [2010]). In support of the [*2]instantapplication, petitioner asserts, among other things, that the indictment was defective, the search warrantwas issued without probable cause and the verdict was not supported by sufficient evidence. Inasmuchas these claims could have been or were raised in petitioner's motions or his direct appeal, he is notentitled to habeas corpus relief. Under the circumstances presented, we find no reason to deviate fromtraditional orderly procedure (see People exrel. Moore v Connolly, 56 AD3d 847, 848 [2008], lv denied 12 NY3d 701 [2009];People ex rel. Landy v Rock, 61 AD3d1198 [2009], lv denied 13 NY3d 702 [2009]).
Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.